Ask Wendy: You break, you pay. Is it legal?

If you accidentally break something while browsing, can you be forced to pay for it?

Mason Govender asks: “I work in a camera shop, and over the past weekend we had a child drop and damage a sporting scope which retails for R10 000. The child was with his mother in the store, and was curiously playing around with all the scopes. 
“The mum neglected her kids during her time in the store. What rights do we have as a store in such a situation?”

A: This scenario is covered by the Consumer Protection Act, which states that “a consumer is not responsible for any loss or damage to any goods displayed by a supplier, unless the loss or damage results from action by the consumer amounting to gross negligence or recklessness, malicious behaviour or criminal conduct.”

In other words, those signs which read: “Nice to look at, lovely to hold, but if you break it, consider it sold” are no longer legal.
But is a mother who allows her young children to roam freely in a shop displaying breakables grossly negligent?

In my opinion, yes, but I asked someone far more qualified and experienced in such matters - Advocate Neville Melville, the Ombudsman for Consumer Goods and Services.

And to answer my question, he pointed me to a case he adjudicated earlier this year.

A woman turned a R1000 lantern on display in a Hyde Park decor shop upside down to find its price, and in the process its lid slipped off and broke on the floor.

The saleswoman told her that she had to pay for it, and, feeling embarrassed, she did, but she left the broken lantern in the shop, and later wrote to the owner, arguing that she should be refunded because the lantern was broken by accident.

But the owner argued that it was “unreasonable” for the woman to assume that the price was on the bottom of the lantern, and that the lid breaking was no accident, but rather “a deliberate act which was both grossly negligent and reckless as to the item”.

Melville disagreed. “Something more than handling an object is required to constitute gross negligence,” he said.

“The handling and examination of an object on open display is exactly what the CPA has in mind."

He recommended that the owner of that decor shop refund the customer in full.

So what would be considered gross negligence?

“The frequently cited example of allowing one’s child to run amok, or throwing a cricket ball to a friend in the store come to mind,” Melville said.

“So too do engaging in a shopping cart pushing race down the aisles of a supermarket and entering a shop with narrow aisles wearing a bulky backpack.”

So parents, letting your children run amok in a store is considered to be a grossly negligent act, and you could well be held liable for any damage they cause.

But if you accidentally break something while browsing you can’t be forced to pay for it - provided you weren’t wearing a giant backpack at the time. 

*Unlike the Consumer Tribunal, the CGSO is unable to make authoritative pronouncements on the law. But it is empowered to advise and educate both consumers and companies on their consumer rights and obligations. In the absence of decided cases from the courts and Tribunal, it attempts to do so by anticipating how these bodies would decide upon matters.